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Declaratory-Judgment Plaintiff Not “True” Plaintiff Under First-Filed Rule

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One party files an infringement action at 12:01 a.m. in New Jersey. Also at 12:01 a.m., the infringement defendant, precluded from lodging its Delaware declaratory-judgment action by a local rule requiring paper filing of complaints, files instead a motion to consolidate the forthcoming declaratory-judgment action with an earlier-filed action. Under the first-filed rule, which action came first, New Jersey or Delaware?

According to Delaware district judge Sue L. Robinson, the question is moot, as the infringement plaintiff’s choice of forum should prevail:

“Even if J&J’s 12:01 a.m. filing of the first New Jersey action were to be considered the functional equivalent of Abbott’s 8:30 a.m. filing of the 07-259 action in this district (and the court declines to find a ‘dead heat’ in this instance), the winner of this race to the court house is the true plaintiff, not the declaratory judgment plaintiff, as this court respects the choices made by plaintiffs in choosing this state as a forum and must, therefore, respect their choice of a different forum.”

In this case — an action “replete with inferences of forum shopping by both parties” — the orchestrated late-night maneuvering came to naught.

Abbott Labs v. Johnson & Johnson, Inc., C.A. Nos. 06-613-SLR, 07-259-SLR, Memo. Op. (D. Del. Nov. 28, 2007).

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